Armstrong v. Thruston , 11 Md. 148 ( 1857 )

Bartol, J.,

delivered the opinion of this court.

This is an action instituted by the appellee, as holder of a promissory note, against the appellant, as endorser. The defences set up were: first, that the handwriting of the defendant’s endorsement was not genuine; secondly, that there was no demand of payment upon the drawers; and lastly, that the notice to the endorser, Andrew Armstrong, was insufficient.

In the course of the trial below, several questions of evidence arose, the decision of which forms the subject of the 1st, 2nd and 3rd bills of exceptions. We think that the objection of the appellant to the evidence stated in the 2nd bill of exceptions is not well taken. That evidence was competent and proper to go to the jury. It was not only unnecessary, but would have been clearly inadmissible for the appellee to have introduced into the cause other handwritings of the defendant, for the purpose of showing that his handwriting had undergone such a change as was spoken of by the witness. And, for the same reason, we are of opinion that the Superior Court erred in admitting the evidence stated in the 1st and 3rd bills of exceptions. It is not competent for a party to introduce, at the trial, other papers irrelevant to the issues, for the purpose of enabling a witness, or the jury, to institute a comparison of handwriting. This rule of law rests upon the soundest reasons. It is established by the English authorities, and has been approved and adopted in Maryland. See 8 Gill, 86. Doe vs. Newton, 1 Nev. & Per., 1, and same case in 5 Ad. & El., 514. Bromage vs. Rice, 32 Eng. C. L. Rep., 625. Griffits vs. Ivory, 39 Eng. C. L. Rep., 104. 1 Greenleaf's Evidence, secs. 580, 581. 2 Phil. Ev., (Cowen & Hill's 3rd Ed., 1849,) 254, 255, 256, 257.

The 4th bill of exceptions presents the questions of the sufficiency of the demand and notice proved in this cause. The law is well settled, by repeated adjudications in this State, that to entitle the plaintiff in such action to recover, he must aver and prove a demand upon the maker for payment of the note at its maturity, and his failure to pay, and also that notice of such demand and non-payment was given to the endorser. The responsibility of an endorser is contingent, it arises under the statute, and to fix it, the requirements of the statute must be complied with by the holder. Graham vs. Sangston, 1 Md. Rep., 66. 3 Md. Rep., 202 and 251. 6 Md. Rep., 5.

In this case, the only proof of the demand and notice is found in the notary’s certificate, which states “that he presented the said promissory note at the place of business of Mr. Horwitz, the trustee for the matters thereof, and demanded pmjm,ent therefor, and was answered by his brother, ‘It cannot be paid.' " The note was drawn by the firm of Neale, Armstrong & Co., composed of John Thomas Neale, George B. Armstrong, and Edmund .Landis. The firm failed in business on or about the 7th day of January 1851, and executed to Mr. Horwitz an assignment of all their property, for the equal benefit of their creditors, and shortly afterwards applied for the benefit of the insolvent laws, and said Horwitz was appointed their permanent trustee. A demand at the office of Mr. Horwitz is not sufficient, it ought to have been made on the makers, or at their place of business; their insolvency does not excuse the holder from a compliance with the statute. Story on Bills, sec. 318, note 1. Story on Prom. Notes, sec. 241. 9 Gill, 360.

The exception to this rule, found in cases of agency, by no means applies to this case; the relation of Mr. Horwitz to the makers of this note, was not that of agent, in the sense spoken of, but simply that of assignee or trustee, which imposed on him no duty to pay the note, or authorized him to do so; and no case has been found where a demand of payment on a person standing in that relation to the maker of a note, has been held sufficient. The notice given to the endorsers in this case, which is also proved by the notary’s certificate, is clearly insufficient. It simply states that the note “had not been paid, and that they would be held responsible for the payment thereof.” The law requires notice of the demand on the makers, as well as of the non-payment of the note. Graham vs. Sangston, 1 Md. Rep., 60.

Entertaining these views, we consider that the court below erred in refusing the prayers of the appellant, contained in the fourth bill of exceptions. Whether we confine our attention to the evidence contained in that exception alone, or consider all the other evidence presented in the other bills of exception and appearing upon the record, the result in this case will be the same. We deem it proper, however, to say, that according to the well established practice in Maryland, and the uniform course of the appellate court, bills of exceptions must be considered wholly distinct from each other, unless they contain sufficient words of connection. Gist's Adm'r vs. Cockey & Fendall, 7 H. & J., 134.

Judgment reversed.